S. Sufran v. WCAB (C&S Wholesale Grocers Inc. & Indemnity Ins. Co. of N.A.) ( 2021 )


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  •             IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Suany Sufran,                        :
    Petitioner        :
    :
    v.                              : No. 1385 C.D. 2019
    : SUBMITTED: July 30, 2021
    Workers’ Compensation Appeal         :
    Board (C&S Wholesale                 :
    Grocers Inc. and Indemnity Insurance :
    Company of North America),           :
    Respondents       :
    BEFORE:        HONORABLE P. KEVIN BROBSON, President Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE ELLEN CEISLER, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE CEISLER                                            FILED: November 15, 2021
    Suany Sufran (Claimant) petitions this Court for review of the September 4,
    2019 order of the Workers’ Compensation Appeal Board (Board), which affirmed a
    decision and order of a Workers’ Compensation Judge (WCJ) denying Claimant’s
    claim petition on the basis that she failed to establish she sustained a work injury.
    After thorough review, we affirm.
    I. Background
    On May 16, 2017, Claimant filed a claim petition seeking compensation under
    the Workers’ Compensation Act (Act)1 for a rotator cuff capsule sprain, pain in her
    right and left knees and upper right arm, and a knee sprain, which she allegedly
    sustained on February 24, 2017, while working as a selector for C&S Wholesale
    Grocers, Inc. (Employer). Certified Record (C.R.), Item No. 2. Claimant sought
    1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041, 2501-2710.
    total disability benefits from March 9, 2017, and ongoing. Id. Employer denied the
    material allegations in the claim petition. C.R. Item No. 4. At a hearing held on
    July 17, 2017, Claimant testified live before the WCJ. Claimant also presented the
    September 29, 2017 deposition testimony of her treating physician, Gene Levinstein,
    M.D. Employer presented the December 11, 2017 deposition testimony of Robert
    Mauthe, M.D., who performed an independent medical examination (IME) of
    Claimant on July 13, 2017.
    A. Claimant’s Evidence
    At the July 17, 2017 hearing, Claimant testified that her work as a selector
    involved receiving product orders through a headset and placing the items into totes.
    C.R., Item No. 11, Notes of Testimony (N.T.), 7/17/17, at 10. She filled between
    500 and 700 totes per day, with some of the totes weighing as much as 25 to 30
    pounds. Id. Employer expected Claimant to fill more than 700 totes per day. Id. at
    22. After filling a tote, Claimant was required to lift it onto a belt. Id. at 11. On
    February 24, 2017, while Claimant was straining to lift a tote filled with a large
    quantity of peroxide onto the belt, she felt discomfort in her right shoulder and in
    both of her knees. Id. at 11-12, 22-23. She reported her alleged work injury to
    Employer, which sent her to St. Luke’s Hospital for evaluation. Id. at 12. Claimant
    returned to work in a light-duty capacity, but she was terminated after a week
    because Employer did not accept the work restrictions imposed by the hospital
    physician. Id. at 12-13.
    Claimant currently treats with Dr. Levinstein and undergoes physical therapy,
    which has led to improvement in her right knee. Id. at 13-14. However, the pain in
    her right shoulder and left knee persists, limiting her ability to lift heavy objects,
    drive long distances, and care for her children. Id. at 14. Claimant does not believe
    2
    that she can resume her pre-injury work due to pain, but she could perform the light-
    duty work she was assigned prior to her termination. Id. at 14-15. Claimant had
    never been treated for pain in her right shoulder or in either of her knees before the
    date of her alleged work injury. Id. at 15. She uses ibuprofen for pain management.
    Id. at 21.
    Dr. Levinstein testified as an expert in pain management and rehabilitation
    and stated that he first examined Claimant on April 10, 2017. C.R., Item No.
    Levinstein Deposition (Dep.), 9/29/17, at 5. During the April 10, 2017 examination,
    Claimant advised that she sustained a work injury to her knees and right shoulder on
    February 24, 2017, which she related to repetitive activity at work. Id. Dr.
    Levinstein’s physical examination revealed no instability in Claimant’s knees or
    shoulder, but he noted that Claimant had some impingement of the right shoulder,
    and she reported pain with both external and internal rotation. Id. at 7. Claimant’s
    range of motion in her knee2 was normal, and her gait was mildly antalgic. Id. Dr.
    Levinstein initially assessed Claimant with pain in both knees and a rotator cuff
    shoulder sprain. Id. He recommended that Claimant pursue physical therapy and
    continue with ibuprofen. Id. at 8.
    Dr. Levinstein also examined Claimant on July 11, 2017, at which time she
    reported that her right knee had improved with therapy, but that she still had pain in
    her left knee and right upper arm. Id. at 8-9. Dr. Levinstein ordered a magnetic
    resonance imaging (MRI) study of Claimant’s left knee and right shoulder. Id. at 9.
    The shoulder MRI was essentially unremarkable. Id. The left knee MRI revealed
    an oblique tear of the medial meniscus. Id. at 9-10. Dr. Levinstein diagnosed
    Claimant with a right rotator cuff sprain, a right knee sprain strain, and a left knee
    2
    Dr. Levinstein did not specify the knee to which he referred.
    3
    meniscal tear, which he related to Claimant’s work activities. Id. at 13. He opined,
    within a reasonable degree of medical certainty, that the meniscal tear of Claimant’s
    left knee was directly and causally related to the repetitive nature of her job, which
    required that she twist her knees, squat, kneel, and walk while carrying heavy boxes.
    Id. at 10-11.
    On cross-examination, Dr. Levinstein admitted that Claimant had recovered
    from her right knee injury and that her right shoulder injury showed significant
    improvement. Id. at 15. He explained that Claimant could return to work, but with
    restrictions on the amount of weight she would be required to lift. Id. at 15, 26-27.
    Dr. Levinstein acknowledged that treatment records from a chiropractor in his
    employ were a “huge mess,” and those records reflected that Claimant underwent
    physical therapy for symptoms unrelated to her alleged work injury. Id. at 19-21.
    As to the alleged work injury, Dr. Levinstein conceded that no specific traumatic
    event caused her meniscus tear. Id. at 32. Rather, Dr. Levinstein believed that she
    sustained “repetitive micro trauma” to the knee, although he could not say when and
    where the meniscus tear initiated. Id. at 32-33.
    B. Employer’s Evidence
    Employer’s expert, Dr. Mauthe, is board certified in physical medicine and
    rehabilitation and electrodiagnostic medicine. C.R., Item No. 18, Mauthe Dep.,
    12/11/17, at 4-5. During the July 13, 2017 IME, Dr. Mauthe obtained a medical
    history from Claimant, who related that she developed pain at work on February 24,
    2017, while lifting plastic totes filled with bottles of peroxide.        Id. at 6-8.
    Specifically, Claimant complained of pain in her right shoulder and left knee. Id. at
    9. According to Dr. Mauthe, Claimant reported to him that her injuries did not arise
    from a single event, but instead were caused by the nature of her work. Id. at 10.
    4
    Dr. Mauthe’s physical examination of Claimant did not reveal evidence of objective
    impairment. Id. at 14-15. Based on Claimant’s history, the records available to him
    as of the date of the IME, and his physical examination of Claimant, Dr. Mauthe
    opined that Claimant was not injured in the course of her employment. Id. at 14.
    Instead, Dr. Mauthe believed that Claimant could not tolerate her work duties
    because she was in poor physical condition. Id. at 14. Dr. Mauthe’s opinion did not
    change after he reviewed the MRIs of Claimant’s left knee and right shoulder. Id.
    at 15-17. The MRI of Claimant’s right shoulder was “absolutely normal[.]” Id. at
    17. While Dr. Mauthe agreed that the MRI of Claimant’s left knee showed an
    oblique tear of the medial posterior meniscus, he attributed that tear to Claimant’s
    size and age, not to a work-related injury. Id. at 16-17.
    Dr. Mauthe also reviewed an October 2017 surveillance video of Claimant,
    which he felt documented normal physical movement consistent with Claimant’s
    presentation during the July 13, 2017 IME. Id. at 18-19. Dr. Mauthe disagreed with
    Dr. Levinstein’s opinion that Claimant sustained a work-related injury. Id. at 20.
    He opined that Claimant merely experienced discomfort while performing her work,
    which he did not equate with a work injury. Id. Dr. Mauthe also disagreed that
    Claimant’s meniscal tear was work related.         Id. at 21.   Instead, Dr. Mauthe
    considered that condition to be degenerative in nature and likely caused by
    Claimant’s body size and age. Id.
    C. WCJ Decision
    On June 21, 2018, the WCJ circulated a decision denying Claimant’s claim
    petition. C.R., Item No. 5. He rejected Claimant’s live testimony as not credible.
    WCJ’s Decision at 4. This credibility determination formed the basis for the WCJ’s
    rejection of Dr. Levinstein’s testimony, as Dr. Levinstein’s understanding of the
    5
    alleged work injury was based on information Claimant provided. Id. The WCJ
    also found Dr. Levinstein not credible because his testimony that Claimant did not
    return to work after February 24, 2017, was contradicted by the allegations in the
    claim petition, as well as Claimant’s own testimony that she worked with restrictions
    until March 9, 2017. Id. Dr. Levinstein opined that Claimant’s alleged work injury
    was caused by the repetitiveness of her work duties; however, no evidence was
    presented that established the repetitive nature of those duties. Id. Finally, Dr.
    Levinstein diagnosed and treated Claimant, even though his initial examination
    failed to reveal any objective findings. Id.
    Having rejected Claimant’s and Dr. Levinstein’s testimony as not credible,
    the WCJ did not address the credibility of Dr. Mauthe. Id. Based on the evidence
    presented, and the above credibility determinations, the WCJ found that there was
    no credible evidence that Claimant suffered a work injury in the course and scope of
    her employment. Id. at 5. Accordingly, the WCJ concluded that Claimant failed to
    meet her burden of proof and he denied the claim petition. Id. at 4-5. Claimant
    appealed to the Board, which affirmed.
    II. Issues
    On appeal, 3 Claimant argues that the WCJ failed to issue a reasoned decision
    as required by Section 422(a) of the Act, 77 P.S. § 834, because the WCJ did not
    adequately explain his credibility determinations with respect to Claimant’s and Dr.
    Levinstein’s testimony.         Specifically, Claimant contends that the WCJ’s brief
    statement rejecting Claimant’s live testimony does not permit adequate appellate
    review. She maintains that the WCJ’s credibility findings as to Dr. Levinstein
    3
    Our standard of review is limited to a determination of whether necessary findings of fact
    are supported by substantial evidence, whether constitutional rights were violated, or whether an
    error of law was committed. Morey v. Workmen’s Comp. Appeal Bd. (Bethenergy Mines, Inc.),
    
    684 A.2d 673
    , 676 n.6 (Pa. Cmwlth. 1996).
    6
    cannot be properly reviewed absent further explanation regarding Claimant’s
    credibility, given that Dr. Levinstein’s testimony was rejected in part because it
    relied on information provided by Claimant. As to this point, Claimant asserts that
    she did present evidence regarding the repetitive nature of her job, as her testimony
    demonstrated that she filled 500 to 700 totes each day. Therefore, Claimant argues
    that the WCJ’s rejection of Dr. Levinstein’s testimony is not supported by substantial
    evidence. Finally, Claimant argues that the WCJ erred when he failed to make any
    findings or render a credibility determination with respect to Dr. Mauthe’s
    testimony. 
    Id.
    III.   Discussion
    Section 422(a) of the Act provides, in pertinent part:
    [a]ll parties to an adjudicatory proceeding are entitled to a reasoned
    decision containing findings of fact and conclusions of law based upon
    the evidence as a whole which clearly and concisely states and explains
    the rationale for the decisions so that all can determine why and how a
    particular result was reached.
    77 P.S. § 834.
    To satisfy the reasoned decision requirement in Section 422(a), the “WCJ
    must set forth the rationale for the decision by specifying the evidence relied upon
    and reasons for accepting it.” A & J Builders, Inc. v. Workers’ Comp. Appeal Bd.
    (Verdi), 
    78 A.3d 1233
    , 1243 (Pa. Cmwlth. 2013). In cases where a WCJ sees
    witnesses testify and can assess their demeanor, a mere conclusion as to which
    witness was deemed credible is sufficient to render the decision adequately
    “reasoned.” Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 
    828 A.2d 1043
    , 1052-53 (Pa. 2003).       Conversely, in cases where a WCJ’s credibility
    determination is not tied to a witness’s demeanor, “some articulation of the actual
    7
    objective basis for the credibility determination must be offered for the decision to
    be a ‘reasoned’ one which facilitates effective appellate review.” 
    Id. at 1053
    . The
    purpose of a reasoned decision is to spare this Court from having to imagine the
    reasons why the WCJ believed the testimony of one witness over another. Dorsey
    v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 
    893 A.2d 191
    , 196 (Pa.
    Cmwlth. 2006). Section 422(a) does not permit a party to second-guess the WCJ’s
    reasons for his credibility determinations. Verizon Pa. Inc. v. Workers’ Comp.
    Appeal Bd. (Mills), 
    116 A.3d 1157
    , 1161 n.3 (Pa. Cmwlth. 2015). A court may
    overturn a credibility determination only where it is arbitrary and capricious or so
    fundamentally dependent on a misapprehension of the facts, or so otherwise flawed,
    as to render it irrational. 
    Id. at 1163
    .
    Here, Claimant testified live before the WCJ, who assessed Claimant’s
    demeanor and concluded that “Claimant’s live testimony [was] not credible.”
    WCJ’s Decision at 4. Under Daniels, the WCJ’s conclusion that Claimant lacked
    credibility is sufficient, and, therefore, the reasoned decision requirement under
    Section 422(a) has been satisfied. See also Garcia-Guerrero v. Workers’ Comp.
    Appeal Bd. (Se. Pers. Leasing) (Pa. Cmwlth., No. 1394 C.D. 2019, filed Oct. 23,
    2020), slip op. at 9 (holding that a WCJ’s conclusion that the “‘[c]laimant’s live
    testimony w[as] not credible’” satisfied the reasoned decision requirement).4
    Additionally, because we find that the WCJ was not required to further explain his
    credibility determination as to Claimant, we are unpersuaded by her argument that
    we cannot properly review the WCJ’s credibility determination as to Dr. Levinstein
    absent a more fulsome explanation of Claimant’s credibility.
    4
    Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and
    Section 414(a) of this Court’s Internal Operating Procedures, 
    210 Pa. Code § 69.414
    (a), an
    unreported opinion of this Court, while not binding, may be cited for its persuasive value.
    8
    With respect to Dr. Levinstein’s deposition testimony, the WCJ clearly
    articulated multiple objective bases for his credibility determination. The WCJ first
    explained that Dr. Levinstein’s understanding of the alleged work injury was based
    on information he received from Claimant, whose testimony was discredited. This
    had the effect of tainting the information upon which Dr. Levinstein based his
    opinion. The WCJ next noted that Dr. Levinstein’s testimony, which reflected that
    Claimant did not return to work after February 24, 2017, contradicted the allegations
    in the claim petition and Claimant’s own testimony that she returned to work with
    restrictions until March 9, 2017. While Dr. Levinstein opined that Claimant’s
    alleged work injury was caused by the repetitive nature of her work duties, Claimant
    presented no evidence in this regard.5 Finally, the WCJ found that Dr. Levinstein
    diagnosed and treated Claimant despite an apparent lack of objective findings in his
    initial examination.
    Given the above, this Court is not in the position of having to speculate on the
    WCJ’s reasons for rejecting Dr. Levinstein’s testimony, as those reasons were
    clearly identified and articulated in his decision. Accordingly, we conclude that the
    WCJ’s decision is sufficiently reasoned under Section 422(a) of the Act.
    We are similarly unpersuaded by Claimant’s argument that the WCJ erred
    when he failed to address Dr. Mauthe’s credibility. In a claim petition proceeding,
    the claimant bears the burden of establishing all the elements necessary to support
    5
    There is no merit to Claimant’s argument that her testimony, which the WCJ discredited,
    provided the evidentiary basis for Dr. Levinstein’s opinion that Claimant’s alleged work injury
    was caused by the repetitive nature of her job. The law is well established that “[t]he WCJ is the
    ultimate fact finder and has complete authority for making all credibility” and evidentiary weight
    determinations. Rife v. Workers’ Comp. Appeal Bd. (Whitetail Ski Co.), 
    812 A.2d 750
    , 755 (Pa.
    Cmwlth. 2002). “The WCJ . . . is free to accept or reject, in whole or in part, the testimony of any
    witness, including medical witnesses.” Griffiths v. Workers’ Comp. Appeal Bd. (Red Lobster),
    
    760 A.2d 72
    , 76 (Pa. Cmwlth. 2000).
    9
    an award of workers’ compensation benefits, including the existence of an injury
    and disability, and a causal relationship between the injury and the work incident.
    Giant Eagle, Inc. v. Workers’ Comp. Appeal Bd. (Thomas), 
    725 A.2d 873
    , 876 (Pa.
    Cmwlth. 1999). Disability is the loss of earnings or earning power that is caused by
    the work-related injury. Sch. Dist. of Phila. v. Workers’ Comp. Appeal Bd. (Lanier),
    
    727 A.2d 1171
    , 1172 (Pa. Cmwlth. 1999). Instantly, once the WCJ rejected the
    testimony of Claimant and Dr. Levinstein as not credible, there was no further
    evidence of record that Claimant could have relied on to satisfy her burden of proof.
    Because Claimant failed to offer credible evidence in support of her claim petition,
    it was not necessary for the WCJ to assess Dr. Mauthe’s credibility to render a
    reasoned decision.     See Stalworth v. Workers’ Comp. Appeal Bd. (Cnty. of
    Delaware), 
    815 A.2d 23
    , 29-30 (Pa. Cmwlth. 2002) (competence of employer’s
    medical expert is irrelevant where claimant’s medical expert was not credible, and
    claimant did not meet her burden of proof).
    Claimant’s arguments herein represent nothing more than an attempt at
    subverting the WCJ’s credibility determinations. As she has not demonstrated that
    these determinations were “arbitrary and capricious or so fundamentally dependent
    on a misapprehension of facts, or so otherwise flawed, as to render [them] irrational,”
    we cannot disturb them on appeal. Verizon Pa. Inc., 
    116 A.3d at 1163
    .
    IV.    Conclusion
    Claimant had the burden of establishing the elements necessary to support an
    award of workers’ compensation benefits. Claimant’s testimony, as well as that of
    her medical expert, was rejected as not credible, and the WCJ’s decision was
    10
    sufficiently reasoned under Section 422(a) of the Act. As a result, we conclude that
    the WCJ did not err in denying Claimant’s claim petition and we affirm the Board.
    __________________________________
    ELLEN CEISLER, Judge
    Judge Fizzano Cannon did not participate in the decision of this case.
    11
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Suany Sufran,                        :
    Petitioner        :
    :
    v.                              : No. 1385 C.D. 2019
    :
    Workers’ Compensation Appeal         :
    Board (C&S Wholesale                 :
    Grocers Inc. and Indemnity Insurance :
    Company of North America),           :
    Respondents       :
    ORDER
    AND NOW, this 15th day of November, 2021, the September 4, 2019
    order of the Workers’ Compensation Appeal Board is hereby AFFIRMED.
    __________________________________
    ELLEN CEISLER, Judge